3011, nor the exemption provision in § 25 of the act of 1890, really prevent the valid bringing of an action against the defendant Bidwell, notwithstanding his collectorship, in a case where the determination complained of was one which, because it regarded an article which was not imported merchandise, he "had no authority to make."

It is true, indeed, that in his brief in the circuit court the learned district attorney categorically imputes to this court a decision inconsistent with this conclusion; but we respectfully insist that in this he was demonstrably mistaken.

His citation reads:

"In the case of Schoenfeld v. Hendricks (152 U.S.,691, affirming 57 Fed. Rep., 568, in this circuit), the Supreme Court also held that 'the right to maintain an action at law against the collector to recover duties paid, whether existing by virtue of the statutory or common law' (sic), was taken away by sections 25 and 29 of the customs administrative act of June 10, 1890.""

As a matter of fact the Supreme Court "held" nothing of the sort. It certainly did not hold that the "common law" "right to maintain an action at law against the collector" "was taken away by sections 25 and 29 of the customs administrative act." Though appearing in the brief between quotation marks (precisely as it is above repeated), the language given as embodying the supposed "holding" nowhere appears in the report of the case in this court, either in the "headnotes" or in the opinion. On the contrary, the opinion affirmatively shows that what was "held" to have been "taken away" by the act of 1890 was simply the statutory right of action against a collector (in customs cases) until then existing under sections 3011 and 2931 of the Revised Statutes (152 U. S., 693); while the reason for holding the "common law" right of action unavailable in such a case as Schoenfeld's (which is of course all that was "held" or even intimated, obiter, in the Schoenfeld decision) is that indicated in the following statement in the opinion (p. 695): "We are of opinion that THIS ACTION Would not lie at common law, the money being required by section 3010 to be paid into the Treasury." In the light of the reason thus given, and on the principle cessante ratione legis cessat ipsa lex, it is clear that the principle of the Schoenfeld decision holds only in cases to which the requirement of "section 3010," that "the money * be paid into the Treasury," can itself be held to apply. Can that requirement be sanely held to apply to any but "customs" cases? Look at the text of the enactment in question:

*
*

"SECTION 3010. All money paid to any collector of the customs, or to any person acting as such, for unascertained duties or for duties paid under protest against the rate or amount of duties charged, shall be placed to the credit of the Treasurer of the United States, and shall not be held by the collector or person acting as such, to await any ascertainment of duties, or the result of any litigation in relation to the rate or amount of duty legally chargeable and collectible in any case where money is so paid." This section, being a part of Article XXXIV, on the "Collection of duties upon imports," would be presumed to apply only to cases in which merchandise had been in fact “imported.” Furthermore, the very wording of the provision affirmatively shows that it is only money

which the collector gets in “customs" cases proper that he is directed to "place to the credit of the Treasurer." The direction for immediate payment into the Treasury is in so many words explained to be made in order to prevent the money being "held by the collector to await" -what?any ascertainment of duties, or, the result of any litigation in relation to the rate or amount of duty legally chargeable, &c." Now, in a case in which there has been, in fact, an "importation" of merchandise, the collector has statutory authority, for the purposes of the performance of his functions, to decide officially, in the first instance, all questions involved in the "ascertainment" of duties and the determination of their rate and amount;" and he is in such cases authorized to receive "duties" paid before definitive "ascertainment,' or paid under protest against the rate or amount of duties charged." Such "duties," and such duties only-"duties" the amount of which has either not been "ascertained" at all, or not conclusively ascertained as against the objection of the importer-are, under § 3010, to be at once on receipt "placed to the credit of the Treasurer." Where the essential "jurisdictional fact" exists, of an actual importation from a foreign country, the collector's errors as to details do not make his acts unauthorized or unofficial, and therefore his collections, though subject to revision, are deemed provisionally valid and as having been made by authority of the Government, and they may therefore well be the subject of such a provision as that of § 3010, as to the paying of the money into the Treasury. But in a case in which there has been in fact no importation at all the individual who holds the office of collector has simply "no authority" at all, and his erroneously holding that there has been an importation does not give him. authority, or convert an exaction of money by him upon that theory into an official or authorized collection of duties such as can be deemed to be either the "unascertained" duties or the "duties paid under protest against the rate or amount of duties charged," which (and which alone) the statute directs the collector to deposit in the Treasury. As this court has said in the Fassett Case, "The collector has no authority to make any determination regarding any article which is not imported merchandise" (142 U. S., 487). In such a case, therefore, he is a mere trespasser if he exacts money as if for "duties," and the law can not be supposed to have contemplated any such trespass by him, nor, therefore, to have provided for the "paying into the Treasury" of the proceeds thereof.

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The Schoenfeld Case (152 U. S., 691) was in fact a "customs" case, there having been an importation of merchandise. The money sued for there had been paid for duties paid under protest as to rate or amount of duty charged, &c." To the money paid to the collector in that case, consequently, the provisions of Sec. 3010 literally applied. It was entirely appropriate, therefore, for the court to say, as it did: "We are of opinion that this action would not lie at common law, the money being required by sec. 3010 to be paid into the Treasury." Το read this as intended to apply to a case materially different from the Schoenfeld case itself (as not being a "customs" case at all), would be to give it a sense in which it would be clearly obiter dictum.

Nor can it validly be urged against the maintenance of this action, that, whether compelled thereto by Sec. 3010 or not, the defendant, supposing as he did that this was a customs case, did in fact deposit the money here in question, and his having done so should have the same

effect toward exempting him from liability as it would have had in a case to which Sec. 3010 applied. In the first place, this supposed "actual,” though voluntary, payment into the Treasury does not appear by the record, and is not to be presumed, it being, er hypothesi, not required by law. Secondly, the reason why a deposit of the moneys required by Sec. 3010 to be deposited exempts the collector from personal liability is simply this, that by that very requirement the United States adopts the collection as its on act, and takes its agent's place in any litigation as to the propriety of such collection (as respects rate and amount"): This reason obviously does not hold where the collector's act is one which is wholly unofficial and unauthorized, as being one concerning "an article which is not imported merchandise." That his having acted in good faith, and in fact deposited the money in the Treasury, is not in law a bar to a "judgment" against him (as distinguished from an execution) is made entirely clear by the explicit provisions of Section 989 of the Revised Statutes, which was not repealed" by the law of 1890, but, on the contrary, has been distinctly recognized by this court in cases much later than the Schoenfeld case (The Conqueror, 166 U. S., 124; Cruikshank v. Bidrell, 176 Ú. S. 81) as being in full force and operation. It reads as follows:

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SEC. 989. Whenever a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and BY HIM PAID INTO THE TREASURY, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary, or other proper officer of the Government, no EXECUTION shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury."

*
*

*

for

It would seem to be beyond contradiction that this section-which is quite as clearly in force as "section 3010," or the "Act of 1890"distinctly proves the policy of the law to be to permit, in some cases, "a recovery" (i. e., a judgment) "against a collector the recovery of any money exacted by or paid to him and by him paid into the Treasury" (though execution is not to issue against the official, and the "final judgment" against him is to be paid out of the Treasury, if the court certifies to "probable cause, &c."). In what sort of a case could this provision find scope and application if not in a case such as the present, in which, the article not being imported merchandise, the intervention of the collector was wholly unauthorized and therefore unofficial, instead of being simply erroneous as to details? In the teeth of this statute, declared in the Cruikshank case to be in force, it seems impossible to insist that the collector's having paid the money into the Treasury is in any way incompatible with the "recovery" of a "final judgment" against him therefor.

POINT II.

It is not true that the complaint "does not state facts sufficient to constitute a cause of action":

1. Porto Rico was NOT, in June or September, 1899, a "foreign country" WITHIN THE MEANING OF THAT TERM AS USED IN THE TARIFF

ACT OF 1897 (under authority of which, and of which ALONE, the defendant claimed the right to collect as duties the sums mentioned in the complaint).

2. Even if in denial of the foregoing contention-the Tariff Act of 1897 had to be construed as in fact PURPORTING to authorize the collection of duties on goods brought from Porto Rico into New York in June or September, 1899, then, in that aspect of it, and to that extent, the act in question must be held UNCONSTITUTIONAL and ineffectual to justify the exaction complained of in this case.

a. Congress cannot lay and collect" any "duties" save such as are "uniform throughout the United States";

b. Duties" collectible “on goods brought from Porto Rico into New York in June or September, 1899," would have been duties NOT "uniform throughout the United States"; Porto Rico having been, ever since the ratification of the treaty with Spain (antedating the period in question), A PART OF THE UNITED STATES":

(1.) Treaties "ceding" territory to the United States make the territory so “ceded” a part of the United States within the meaning of the provisions of the Constitution as to the uniformity of duties throughout the United States.

(2.) The treaty with Spain "ceded" Porto Rico to the United States as of the date when such treaty became effective (a date antedating the period here in question). There was nothing to POSTPONE OR SUSPEND the operation of the treaty as a PRESENT CESSION of the ISLAND, in the circumstance the only one which has been suggested to that effectthat it (the treaty) provides that the Congress shall determine the civil rights and political status of THE NATIVE INHABITANTS of the ceded islands and that the SPANISH-BORN INHABITANTS may have one year

in

which to choose whether to preserve or abandon their allegiance to Spain.

ARGUMENT.

PROPOSITIONS OF THE APPELLANT.

These cases present the question whether under the Constitution the Government is authorized to impose a tax upon merchandise brought into the port of New York from the island of Puerto Rico after the cession of that island to the United States by formal treaty, duly ratified and proclaimed.

Such a tax has been here imposed on the supposed authority of the Customs Revenue Act of 1897 (Dingley Act).

The Dingley Act provides for the imposition of a customs duty on sugars imported from foreign countries, and notwithstanding the acquisition by the United States of the island of Puerto Rico under the treaty with Spain of December 10th, 1898, ratifications of which were exchanged on the 11th day of April, 1899, the collector of the port of New York exacted the payment of customs duties on sugar brought into said port from Puerto Rico in the months of June and July, 1899, as though it had been imported from a foreign country.

As a basis for the examination of this question we submit the following propositions:

A. A treaty duly entered into is law, and has the force of a statute until superseded by subsequent enactment.

B. The treaty of Paris ceded Puerto Rico to the United States. Puerto Rico then came completely under the sovereignty and dominion

of the United States. The political map of the world was changed and Puerto Rico became geographically a part of the United States, or of what Marshall called the "American Empire," under the statutory name of PORTO RICO.

C. The clause of the treaty leaving the determination of the "civil rights and political status" of the native inhabitants to Congress was merely declaratory of the power given by the Constitution to withhold political rights and franchises and to establish civil government and enact municipal law in all places where no State government exists. D. All territory lawfully acquired and taken under sovereign jurisdiction is a part of the United States.

E. The Constitution is a CHARTER or GRANT of POWERS conferred upon the Federal Government by the PEOPLE OF THE UNITED STATES. The Federal Government has no existence outside of this Constitution. Hence it is a confusion of terms to speak of territory to which the United States has acquired title as not being within our "Constitutional boundaries" or incorporated into the United States. It is a misapprehension of the nature of our institutions and of the function of the organic law of our national existence, known as the "Constitution," to speak of any part of the nation being beyond its boundaries. or to speak of its "extension" over portions or over all of the national territory. There is no boundary to the Constitution other than the whole sphere of the activity of the Federal Government. Outside of that sphere, beyond that boundary, the Federal Government can only act by usurpation-a government of force-not of law, and officials assuming to act for the United States outside of the prescriptions of the Constitution are, however well intentioned, outside of the law.

F. This is the elementary rule of constitutional functions. But it does not follow that, because all government finds its sole authority in the constitutional grant, every prescription of the Constitution, its delegations, limitations, and prohibitions can always and at all places be made applicable to all governmental action in all circumstances. These are applicable according to varying place and circumstance.

The unquestioned proposition that the Government is powerless to act outside of the charter of its existence does not of necessity imply that the Bill of Rights-the prohibition against cruel and unusual punishments-operates at once throughout any territory over which the Government of the United States exercises jurisdiction-military, transitory, or permanent.

G. Territory held by military occupation during hostilities or as an incident thereto is subject to the rule of the President as Commander in Chief under the Constitution. No limitations are placed upon his power as Commander in Chief, save such as must be implied—¿. e., to wage only civilized warfare. But the freedom from limitation does not arise from the inapplicability of the restraints of the Constitution; on the contrary, it is a freedom granted by the Constitution, which gives him, in case of war, the usual powers of military commanders recognized by international law.

H. Territory acquired by the law or treaty-making power, and hence coming under the sovereign jurisdiction of the United States, may be governed by the Executive until Congress undertakes to govern it.

As long as war lasts the Executive continues his military rule as Commander in Chief. Upon ratification of the treaty of peace he continues his rule under his general duty and power to execute the